Harvey and Evertop Investments Pty Ltd and ANOR
[2016] WASAT 10
•18 FEBRUARY 2016
HARVEY and EVERTOP INVESTMENTS PTY LTD & ANOR [2016] WASAT 10
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 10 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:19/2015 | 2 NOVEMBER 2015 | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) MS P LE MIERE (MEMBER) | 18/02/16 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | LAURA HARVEY EMMA BREE HARVEY ABBEY-ROSE HARVEY EVERTOP INVESTMENTS PTY LTD & ANOR JAMES KIDD |
Catchwords: | Discrimination Equal opportunity Direct discrimination Family status |
Legislation: | Equal Opportunity Act 1984 (WA), s 35A, s 35B, s 66A(1), s 93(1), s 127(a) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR WA 16 Grover v Commissioner of Police [2005] WASC 263 Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 Li v Edith Cowan University [No 3] [2012] WASCA 277 McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 Pickett v Chan [2010] WASAT 55 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 |
Orders | 1. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 19 of 2015 in respect of Ms Laura Harvey is dismissed.,2. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 20 of 2015 in respect of Ms Emma Bree Harvey is dismissed.,3. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 21 of 2015 in respect of Ms Abbey-Rose Harvey is dismissed. |
Summary | In July 2014 three casual employees of the Jim Kidd sports stores, namely, Laura Harvey, Emma Bree Harvey and AbbeyRose Harvey, who were the wife and daughters respectively of Mr Neil Harvey, the operations manager of the stores, who was in a dispute with the company, were transferred from stores where they worked to the company's warehouse.,Each of the three applicants claimed that the action taken against them was discriminatory and a breach of the Equal Opportunity Act 1984 (WA) and made complaints to the Equal Opportunity Commissioner who referred the matter to the Tribunal.,Having heard all of the evidence, the Tribunal found that it was not satisfied to the standard required that either Laura Harvey, Emma Bree Harvey or AbbeyRose Harvey had been unlawfully discriminated against and that other employees in similar circumstances but who were not related to Mr Neil Harvey would have been treated in a similar fashion and the three applications were dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : HARVEY and EVERTOP INVESTMENTS PTY LTD & ANOR [2016] WASAT 10 MEMBER : MR M SPILLANE (SENIOR MEMBER)
- MS P LE MIERE (MEMBER)
- EOA 20 of 2015
EOA 21 of 2015
- First Applicant
EMMA BREE HARVEY
Second Applicant
ABBEY-ROSE HARVEY
Third Applicant
AND
EVERTOP INVESTMENTS PTY LTD & ANOR
First Respondent
JAMES KIDD
Second Respondent
Catchwords:
Discrimination Equal opportunity Direct discrimination Family status
Legislation:
Equal Opportunity Act 1984 (WA), s 35A, s 35B, s 66A(1), s 93(1), s 127(a)
Result:
Applications dismissed
Summary of Tribunal's decision:
In July 2014 three casual employees of the Jim Kidd sports stores, namely, Laura Harvey, Emma Bree Harvey and AbbeyRose Harvey, who were the wife and daughters respectively of Mr Neil Harvey, the operations manager of the stores, who was in a dispute with the company, were transferred from stores where they worked to the company's warehouse.
Each of the three applicants claimed that the action taken against them was discriminatory and a breach of the Equal Opportunity Act 1984 (WA) and made complaints to the Equal Opportunity Commissioner who referred the matter to the Tribunal.
Having heard all of the evidence, the Tribunal found that it was not satisfied to the standard required that either Laura Harvey, Emma Bree Harvey or AbbeyRose Harvey had been unlawfully discriminated against and that other employees in similar circumstances but who were not related to Mr Neil Harvey would have been treated in a similar fashion and the three applications were dismissed.
Category: B
Representation:
Counsel:
First Applicant : Mr G McCorrey (Acting as Agent)
Second Applicant : Mr G McCorrey (Acting as Agent)
Third Applicant : Mr G McCorrey (Acting as Agent)
First Respondent : Mr S Edwards (Acting as Agent)
Second Respondent : Mr S Edwards (Acting as Agent)
Solicitors:
First Applicant : N/A
Second Applicant : N/A
Third Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR WA 16
Grover v Commissioner of Police [2005] WASC 263
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Li v Edith Cowan University [No 3] [2012] WASCA 277
McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125
Pickett v Chan [2010] WASAT 55
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Introduction
1 This matter concerns a claim for unlawful discrimination on the grounds of family status under the Equal Opportunity Act 1984 (WA) (EO Act).
2 The applicants, Mrs Laura Harvey (first applicant), Ms Emma Bree Harvey (second applicant) and Ms AbbeyRose Harvey (third applicant) were each employed on a casual basis by Evertop Investments Pty Ltd (first respondent), a company which owned and operated the Jim Kidd sports stores.
3 In July 2014, the husband and father of the three applicants, Mr Neil Harvey, was in dispute with the first respondent where he had been the operations manager, when James Kidd (second respondent) who is the owner of the company, moved to transfer the applicants from the stores they were working in to the company's warehouse, which actions the applicants claimed were discriminatory.
4 Complaints of unlawful discrimination on the grounds of family status were made to the Equal Opportunity Commissioner (Commissioner) on 20 March 2015 and by letter of 2 June 2015, the Commissioner referred the matter to the Tribunal under s 93(1) of the EO Act.
Background facts
5 Mr Neil Harvey was the operations manager of the retail sports stores owned and operated by the first respondent of which the second respondent is the managing director and sole shareholder. The first applicant was Mr Harvey's wife and the mother of the other two applicants. She was a casual shop assistant at the Joondalup store, working Mondays and Thursdays from 9.00 am to 2.00 pm, and on Sundays acted as the shop manager from 11.00 am to 5.00 pm. Mrs Harvey had originally started work as a casual shop assistant at the Harbour Town store in 2010 and moved to Joondalup in August 2013.
6 Ms Emma-Bree Harvey (second applicant) was a daughter of Mr Harvey and also worked as a casual shop assistant at various stores from 2007 until July 2014. At the time of the alleged conduct she worked at the Belmont store on Tuesdays, Wednesdays and Fridays from 10 am to 3 pm, on Thursday nights from 5 pm to 9 pm, and on Sundays from 11 am to 5 pm. It was alleged by Ms EmmaBree Harvey, and not contested by the respondent, that the respondent was aware that she suffers from Lupus, an autoimmune disease that limits the amount of work she can do and the environment she can work in.
7 Ms Abby-Rose Harvey (third applicant), another daughter of Mr Harvey, was at the relevant time in year 12 at school, and originally worked at the Harbour Town store as a casual shop assistant with her mother (first applicant) and later moved with her mother to the Joondalup store where she worked from 11 am to 5 pm on Sundays.
8 In about midJuly 2014, Mr Harvey was suspended from his position as operations manager of the stores and negotiations were continuing with the first and second respondent in respect of a separation agreement.
9 The second respondent stated in his written statement that as from 15 July 2014 when Mr Harvey attended a meeting with the first respondent's accountant in respect of the termination of his employment, the dispute was increasing in hostility and legal implications by the day.
10 In her witness statement, the first applicant stated that her husband was under a lot of stress in his job and had informed her in midJuly 2014 that he had been suspended from his position as operations manager and that the second respondent was trying to get him to resign, and she was distressed at how her husband was being treated.
11 The second applicant's only direct reference to her knowledge of her father's situation was to the effect that she knew he had lost his job or been suspended and that 'going to Fair Work was our - my way, my family's way to see if what he was doing was the right thing ….'.
12 The third applicant gave evidence that she heard her parents discussing her father's employment problems but did not participate in those discussions.
13 The applicants and Mr Harvey all lived in the same house, all knew the second respondent and all worked for the first respondent.
14 On 21 July 2014, the second respondent sent three separate notices to the three applicants, all in identical terms, stating that they were being transferred from their positions in the stores to work in the 'warehouse', working under Ms Katrina Butt (Ms Butt), effective immediately, and that the new hours for all the applicants at the warehouse were to be '… Monday to Thursday 9 am to 3 pm and every second Friday …' (notice).
15 There is a factual dispute between the parties as to what occurred when the first applicant attended the warehouse for work as directed on 28 July 2014, the next working day after receiving the notice.
16 Apart from the first applicant attending the warehouse on 28 July 2014, none of the applicants returned to work for the respondent and all three took the conduct of the respondents to the Fair Work Commission but stated in evidence that 'we were not able to get the dispute resolved'.
17 On 20 March 2015 the three applicants separately complained to the Commissioner that they were victims of unlawful discrimination by the first and second respondents on the grounds of family status under s 35B of the EO Act.
18 The Commissioner was unable to resolve the matter through their processes of investigation and conciliation and on 2 June 2015 the Commissioner referred all three complainants to the Tribunal pursuant to s 93(1) of the EO Act.
19 The section of the EO Act on which the applicants based their claim to the Commissioner was s 35B headed 'Discrimination against applicants and employees' which was confirmed by the Commissioner in its letter to the respondent dated 10 April 2015. The Tribunal's jurisdiction is confined to the complaint or matter before the Commissioner: Li v Edith Cowan University[No 3] [2012] WASCA 277 at [38].
20 By consent of the parties, given the common related parties and relevant facts, all three complaints were heard and determined together.
The issue for determination
21 The principal issue for the Tribunal to determine therefore is whether the respondents, in transferring the applicants to the company's warehouse, unlawfully discriminated against the applicants on the ground of their family status contrary to s 35B of the EO Act.
The EO Act and relevant case law
22 Section 35B(1) and (2) states:
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of the person’s family responsibility or family status
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibility or family status
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
24 Section 35A(1) of the EO Act states:
Discrimination on the ground of family responsibility or family status
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if, on the ground of
(a) the family responsibility or family status of the aggrieved person; or
(b) a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c) a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
25 The items outlined in s 35A(1) are regarded as the necessary elements of a claim for direct discrimination. Whereas the requirements that attach to what is described as indirect discrimination are as set out in s 35A(2).
26 In the present case it is only s 35A(1) that needs to be considered as all three complaints were based on claims of direct discrimination only. This was clarified and confirmed by the Tribunal with the applicants' representative at the start of the hearing (T:4; 02.11.15).
27 How discrimination may be established by applying the necessary tests set out in s 35A(1) was recently summarised by Senior Member McNab in McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 when in dealing with s 66A(1) of the EO Act which has similar provisions to s 35A(1), Member McNab stated at [21] [23]:
In Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent), Pritchard DCJ (as Her Honour then was) helpfully summarised the elements of a successful claim under s 66A(1) of the EO Act. Her Honour noted, at [32], that the applicant must show that:
a) he suffered from an impairment;
b) the [respondent] treated him less favourably than in the same circumstances[,] or in circumstances that are not materially different, the [respondent] treats or would treat a person without such an impairment; and
c) he was treated less favourably on the basis of that impairment that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;
• it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct it is enough if it is one of the grounds for the conduct;
• proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.
See Williams and Commissioner of Police[2005] WASAT 349 at [35] [38] and the cases cited therein, and see also s 5 of the EO Act.
29 The first element is the family responsibility or family status of the aggrieved persons, in this case the applicants. That element was accepted by the respondent with the applicants being the wife and daughters of Mr Harvey, the suspended operations manager, and that they came within the definition of family responsibility or family status in the EO Act.
30 The respondent also acknowledged and conceded, correctly in the Tribunal's view, that the 'causal connection' set out as the third element in Laurent, also existed. The causal connection being the connection between the ground of discrimination alleged and the decision or act complained of.
31 That left the applicants to prove only the second element of the test set out in Laurent, namely that the respondent had treated the applicants less favourably in the same circumstances, or in circumstances that are not materially different than the respondent treated or would treat a person not having the applicants' family status. This element of the test is often described as the 'differential treatment'.
32 Under the heading 'differential treatment' at paragraph 4.2.8 of Australian antidiscrimination law, (2nd ed, 2014), the authors N Rees, S Rice and D Allen state:
The first element of the standard description of direct discrimination involves a comparison of the respondent's treatment of the complainant with the respondent's treatment of another actual or hypothetical person in similar circumstances who does not have the same protected attribute as the respondent. … In order to determine whether the respondent subjected the complainant to differential treatment that is, whether the respondent treated the complainant less favourably than he or she treated, or would have treated, another person without the complainant's relevant attribute (such as race or sex) in comparable circumstances it is necessary to identify other people whose treatment by the respondent can be compared with the complaint's treatment by the respondent. These people are usually referred to as 'comparators'. The 'comparators' may be real or hypothetical people. Because it is quite rare in practice to locate an actual person who may serve as a 'comparator' to the complainant, courts and tribunals are often required to engage in the artificial exercise of seeking to determined, on the basis of the evidence presented by the parties, how the respondent would have treated a hypothetical, or notional, person who possessed all of the complainant's attributes, other than the attribute claimed to be the ground of discrimination, in comparable circumstances. …
33 Therefore, to determine whether the applicants were treated less favourably, the Tribunal must compare the decision to transfer the applicants, being persons with the family status of being related to Mr Harvey, against what decision would have been made in respect of another person in similar circumstances but who was not related to Mr Harvey, namely a comparator.
34 In Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR WA 16 (Edoo), Pritchard DCJ (as her Honour then was) explained the requirements at [160] [163] by stating:
Mr Edoo must prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances: Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at [234] [236] (Gummow, Hayne and Heydon JJ). The expression 'less favourably' in s 36 of the EO Act bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case: Ghockson; Haines v Leves (1987) 8 NSLWR 442 at 471 (Kirby P).
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated: Boehringer Ingelheim Pty Ltd v Reddrop[1984]2 NSWLR 13at 19 (Mahoney JA).
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; (2005) EOC 93405; Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 at [59] [68]. Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison: Zangari and St John Ambulance Service[2010] WASAT 6 (Zangari) at [38]. In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable: Purvis at [224] (Gummow, Hayne and Heydon JJ).
35 Despite raising the issue of the comparator on more than one occasion with the representatives for the parties, the Tribunal was not greatly assisted in identifying such a comparator, nor was any direct evidence led by either party as to how the first and the second respondents might or would have treated any other person in similar circumstances, without the applicants' family status, although some submissions were made on the point. Indeed, it was only in crossexamination that any evidence was adduced that assisted the Tribunal.
36 The facts in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis), the leading High Court authority in the area, clearly illustrate the difficulties which can arise in some cases, when seeking to ascribe the attributes of the comparator and determining the relevant circumstances for the purpose of this 'statutorily mandated comparison'.
37 But despite such difficulties, the court in Purvis confirmed that the legislation, in this case s 35A(1) of the EO Act, requires the construction of a 'notional person' whose treatment can be compared to that of the complainants/applicants.
38 Furthermore, as stated by Rees, Rice and Allen in the reference set out earlier, the Tribunal is required to determine 'on the basis of the evidence presented by the parties' how the respondent would have treated a hypothetical, or notional person.
39 Although it is permissible to make certain inferences from proved facts, the Tribunal is not allowed to speculate and the Tribunal's findings must be based on the evidence put before it by the parties and, as this Tribunal recently stated in Lynch and Commissioner of Police[2016] WASAT 8 at [10]:
The applicant bears the onus of proof and must prove his case on the balance of probabilities. Allegations of discrimination are serious matters and have serious consequences under the EO Act. Consequently, although the civil standard of proof on the balance of probabilities applies, the Tribunal must feel an 'actual persuasion' that the facts said to demonstrate the alleged discrimination actually occurred, and the Tribunal is reasonably satisfied that the allegations of discrimination have been proved to what is often called the Briginshaw standard of proof before making any such finding: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 362 (Dixon J) as cited in Pickett v Chan [2010] WASAT 55 at [18].
40 In Briginshaw v Briginshaw(1938) 60 CLR 336 (Briginshaw), Dixon J, as he then was, observed:
… [i]n such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences.
Relevant evidence
The first applicant
41 The first applicant gave evidence that following receipt of the transfer notice referred to she went to the warehouse as directed and spoke to Ms Butt and asked what she was supposed to be doing, and Ms Butt told her that she (Ms Butt) did not know, as they had enough staff.
42 Ms Butt, in her witness statementdated 8 October 2015, effectively denied that she said anything to the first applicant about what work was available, but at the commencement of the hearing she amended her witness statement to confirm that she may have spoken to the first applicant when she attended at the warehouse but denied that she told her that there was no work.
43 The first applicant says that after speaking with Ms Butt she went to the office where the second respondent was involved in a meeting with two other employees, which she interrupted and asked if she could return to work at the Joondalup store, to which he replied 'No'. The first applicant says she took this to mean she had no job at all, and it appears following that, she took no further steps to contact the second respondent or to commence work.
44 The second respondent's evidence as to his motivation in transferring the first applicant to the warehouse was that he did not consider it in the best interests of the first respondent to have the first applicant dealing with cash and clients, given the growing hostility in the dispute with her husband.
45 The applicants interpreted this to mean that he had lost trust in the first applicant and was concerned that she might possibly not deal with money she received on behalf of the first respondent in an honest way, and it was a concern that being a key holder she also had access to one of the stores (Joondalup) when no one else was there. This interpretation was not challenged by the respondents.
46 The second respondent cited the finding of a written warning notice given to the first applicant previously unknown to him as the catalyst to him deciding to transfer her.
The second applicant
47 The second applicant's evidence was that on 23 July 2014 she emailed the second respondent protesting at her transfer to the warehouse, stating that working in extreme temperatures and a dusty environment would put her at a disadvantage and claiming, among other things, that the second respondent's actions in transferring her without any reason being given was discriminatory and sought a response to her email within 24 hours. Whilst she did make reference to her health in the email referred to above, she did not say that she could not work at the warehouse or that she thought working there would put her health in danger.
48 The second respondent replied on 24 July 2014 (the following day) saying he could not resolve the issue as his accountant and his lawyer were away and he would respond in the middle of the following week. The second respondent did not say whether he would or would not take the second applicant's health into consideration or deny that the conditions she would be working in would be any different to those in one of the stores, but did say that he would need time to respond.
49 The second applicant replied the next day, 25 July 2015, saying that as she had been given no reason for the transfer she would report to theBelmont store for her usual shift, to which the respondent replied that there were no hours available for her at the Belmont store and the only work for her was at the warehouse.
50 In crossexamination the second applicant stated that she was not interested in attempting to work at the warehouse and that her health was only one, albeit a significant, reason for her not wanting to work there (T:23; 02.11.15).
51 Whilst the second respondent did not say where in the warehouse any of the applicants would work, the second applicant, the only one who claimed that she was not able to work in the warehouse due to the extreme temperatures and dusty surroundings, made no enquiries of the second respondent as to what work she would to be doing or attempted to negotiate terms or conditions with him.
52 The second applicant did not at any time report for work at the warehouse.
53 Relevantly and most significantly, the second applicant stated that one of the reasons she did not want to go to the warehouse was because '… when you get sent to the warehouse that's Jim's way of saying, "I want to watch you to find out a reason to get rid of you" because he has done it to many others' (T:23; 02.11.15).
The third applicant
54 The third applicant gave evidence following receipt of the notice, and on advice from her mother, she sent an email to the second respondent confirming, amongst other things, that she could not work during the week as she was at school, and that she believed she had been treated unfairly, was being bullied and that 'fair works may have to be contacted …'.
55 An email exchange then followed whereby the second respondent informed the third applicant that the only work that was available was at the warehouse Monday to Thursday, and every second Friday during the school holidays.
56 The third applicant also made no enquiries of the second applicant as to what work they were to be doing or made any attempt to negotiate terms or conditions with him.
The second respondent
57 The second respondent gave evidence that he intended the applicants to work in the stock area within the office area of the warehouse and not in the main storage area of the warehouse. He confirmed that the stock areas were carpeted, airconditioned, had natural light and the same amenities as all the stores.
58 The Tribunal notes that although the email to the parties informed them that they would be working under Ms Butt, Ms Butt only worked in the stock area on occasions and otherwise worked in the general warehouse section.
59 However, very little turns on where in the warehouse the parties would have been working, as the second and third applicants made no attempt to commence work at the warehouse and, although the first applicant attended at the warehouse, she took no real steps to commence work either.
60 In his witness statement the second respondent stated that he did not consider it in the best interests of the first respondent to have the first applicant carry out a senior retail position, dealing with cash and clients, because the legal dispute with her husband was increasing in hostility and legal implications.
61 The second respondent also gave evidence that once he found the record of written and verbal warnings given to the first applicant, that precipitated the action he took to have all three applicants transferred to the warehouse (T:57; 02.11.15).
62 The second respondent expressed concerns regarding the third applicant because she was working unsupervised by anyone other than her mother. He considered there was a risk of collusion with them working the same shift without supervision, and he did not trust the applicants to be store key holders and have access to cash without other supervision. His intent in transferring the applicants to the warehouse was so he could review the situation and talk with each of them to resolve a way forward.
63 The second respondent also confirmed that he was concerned that Mr Harvey '… undertook actions that gave him and his family direct benefit at my expense', and gave evidence that he had not been aware, firstly, that the first applicant had warnings yet she had been made a key holder of a store and, secondly, the first and third applicants were working the same hours at the same store and 'should not have been rostered as such'.
64 He stated:
I instigated a temporary transfer of the Harveys to the warehouse to allow us time to resolve the risks that the business was exposed to. Neil Harvey clearly favoured his family members and put the company at risk, therefore I undertook my actions to mitigate the risk to the business.
65 In crossexamination he confirmed that he had transferred the applicants to the warehouse because he wanted to see what their attitude was and if they were going to work through the situation (T58; 02.11.15). He stated:
… I just wanted to see whether they had turned feral … you can tell … if you work with them people can tell you all different things. If we see the situation as far as their attitude goes, it is quite easy to pick if they're going to work through the situation. …
Consideration
66 The Tribunal accepts on the evidence before it and finds that given the circumstances the parties found themselves in, the second respondent considered the applicants represented a commercial risk to the first respondent.
67 That does not mean the Tribunal formed a view as to whether the second respondent's view was correct or justified but rather that it was his genuine belief in the circumstances he found himself in.
68 The Tribunal could find no logical connection between the second respondent's refusal to allow the first applicant to go back to the store at Joondalup and the first applicant's belief that she was dismissed when the second respondent had just transferred her to work at the warehouse.
69 The first applicant simply left after receiving that response from the second respondent in a meeting which she had interrupted, without seeking to confirm what it meant, and contacted the Fair Work Commission the next day, thereafter commencing proceedings in the Fair Work Commission without taking any steps again to contact the second respondent to try and discuss her work or working conditions.
70 As set out earlier, the second or third applicants also made no enquiries or attempted to discuss or negotiate terms with the second respondent.
71 The Tribunal is required to determine whether the second respondent treated the applicants differently by reason of their being Mr Harvey's wife and children than he would have treated a comparator in similar circumstances.
72 In respect of a notional comparator, having considered all of the facts and the evidence in the present case, the Tribunal, based on the limited material before it considers that a hypothetical or notional comparator that could be used in the present case is:
A person who although not being a relative of the suspended operations manager, Mr Harvey, is an employee of the first respondent (casual or otherwise) who is a close associate/friend of Mr Harvey who, based upon some material (whether objectively rational, fair or justified) the respondent believes may represent a 'commercial risk to the employer'.
73 As stated earlier, direct evidence of how the respondents may have or had in the past treated others was not put before the Tribunal and, indeed, no line of crossexamination was directed to this issue. It was only in reply to questions relating to other matters in crossexamination that the matter was touched upon.
74 One example was when under crossexamination regarding getting advice from 'fair work' the second applicant explained that:
… And as far as I am aware, when you get sent to the warehouse that's Jim's way of saying, 'I want to watch you to find out a reason to get rid of you' because he has done it to many others.
(Tribunal's emphasis)
(T:23; 02.11.15)
75 The Tribunal accepts this as evidence that when the second respondent wishes to keep and eye on, or observe an employee who he may have lost trust in or regarded them as a commercial risk, he was likely to transfer them to the warehouse regardless of who they were.
76 The Tribunal reaches that view because that evidence by the second applicant was confirmed in crossexamination of the second respondent when he was asked by the applicants' representative why he did not transfer the applicants to some other store where they would be under the supervision of a manager, and he stated:
They … it was an interim situation. I just wanted to see whether they had turned feral. That came into a situation you can tell (indistinct) someone if you work with them people can tell you all different things. If we see the situation as far as their attitude goes, it is quite easy to pick if they're going to work through the situation. … You know, it's one of those things, and to me, for the protection of the business, I had no alternative, and if I had the same situation tomorrow, I would do exactly the same things, because it's business. (T:58; 02.11.15)
77 In effect, those two statements in crossexamination of the second applicant and the second respondent were the only 'evidence' before the Tribunal as to what may have happened to a hypothetical comparator.
78 In deciding if a complaint of discrimination is established, the Tribunal is obliged to base its findings on material which is probative of the matter or matters to be proved (Grover v Commissioner of Police [2005] WASC 263 at [26]) and, as stated in paragraph 4.2.8 of Rees, Rice and Allen, set out above:
… courts and tribunals are often required to engage in the artificial exercise of seeking to determine, on the basis of the evidence presented by the parties, how the respondent would have treated a hypothetical, or notional, person who possessed all of the complainant's attributes, other than the attribute claimed to be the ground of discrimination, in comparable circumstances.
(Tribunal's emphasis)
79 The Tribunal recognises that the applicants made a number of submissions which the Tribunal has considered. However, it is the evidence before it that the Tribunal must principally be concerned with and, as stated earlier, the Tribunal is not allowed to speculate.
80 As Member McNab stated at [82] and [83] of McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125:
Suspicion, conjecture and unsupported inferences are not sufficient evidence to discharge the onus on the applicant to show some logical connection based upon relevant objective facts proving discrimination to the relevant standard on the ground alleged. …
Accordingly, the Equal Opportunity Tribunal of South Australia could find, as it did recently in Sellen and TNT Australia Pty Ltd [2015] SAEOT 6, at [19], that certain conduct of a manager in relation to an employee with autism 'was unfair and irrational' but that did 'not make it unlawful' under the local equivalent of the EO Act. As was similarly noted by the Victorian Tribunal, in Gounder v Allmand [2007] VCAT 1898; (2007) EOC 93480, at [94], legislation such as the EO Act is not concerned with,
… the behaviour of an employer that is industrially unwise, contrary to sound management principles, capricious or unjust. The complainant must establish discrimination [under the relevant EO Act].
82 In all the circumstances, based on the evidence before it, the Tribunal is not satisfied to the standard required that the first and second respondents unlawfully discriminated against the applicants as claimed, but rather finds that the respondents, rightly or wrongly, were likely to have treated a comparator in similar circumstances such as the one the Tribunal has identified earlier in exactly the same way.
83 As the applicants have not satisfied the Tribunal as to the 'differential treatment' element of the statutory mandated test set out in s 35A(1) of the EO Act, unlawful discrimination under s 35B of the EO Act cannot be established.
84 The respondent argued that even if the applicant had satisfied the Tribunal that the respondents' conduct was discriminatory, the exemption in s 35M of the EO Act applied. However, as the applicants have failed to satisfy the Tribunal in respect of the 'differential treatment' element of the test and unlawful discrimination cannot be established, there is no need to deal with that matter or, indeed, to consider detriment.
85 For the reasons outlined, the applicants having failed to prove unlawful discrimination to the required standard, all three applications will be dismissed pursuant to s 127(a) of the EO Act.
Orders
1. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 19 of 2015 in respect of Ms Laura Harvey is dismissed.
2. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 20 of 2015 in respect of Ms Emma Bree Harvey is dismissed.
3. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA) the complaint the subject of this inquiry, namely EOA 21 of 2015 in respect of Ms AbbeyRose Harvey is dismissed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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